In 2012, Great Britain decided to prohibit access to legal aid in all cases except those involving domestic violence. And guess what happened. Claims of DV shot up (BBC, 6/3/18). Their numbers have increased 30% since then and are going up again this year. It seems that solicitors are accurately telling potential clients that they don’t qualify for legal aid unless they make a claim of abuse. Unsurprisingly, many people decide that access to free legal help is worth distorting the facts a bit.
And of course it’s not as if domestic violence is that difficult to claim. Almost any behavior on the part of one’s spouse that’s obnoxious, rude or crude will suffice. The requirement that behavior be actually, you know, violent, to qualify as domestic violence, went by the wayside long, long ago. Did he urge her on more than one occasion to stop spending so much? He’s an abuser. What about begging her to stop hanging out with the junkies down the street? Same result.
So, given that “domestic violence” can mean virtually anything and that the government is frankly offering monetary incentives to file claims thereof, who is seriously surprised to see the number of claims increasing?
Plus, for the complainant, few things in court are easier than prevailing in a case alleging DV? Here’s some of what the charity Families Need Fathers has to say about the process in court:
They are often granted in the absence of the person being accused of abuse (the respondent) and without accusations of domestic abuse being proven
The making of an order then also enables the complainant to draw on thousands of pounds in legal aid which can also be used in any subsequent family law cases
The respondent would not be automatically entitled to legal aid, however, and often has to represent themselves
The level of evidence required is fairly low and can relate to claims about verbal abuse, unwanted text messages or emails
In other words, the deck is stacked in favor of the complainant and against the respondent. After the complaint is made, the courts are quick to impose restrictions on the respondent, but woefully slow to ask him for his side of the story. Indeed, sometimes they never get around to doing so.
Once an order is made, there is a brief "return" hearing two weeks later but the case is then usually adjourned for about six months.
During this time every agency related to the the respondent and his family, such as the police, school and local council, is notified.
This can lead not only to the parent being physically separated from their children but being ostracised by the agencies involved with them.
After about six months, usually, a fact-finding hearing is held at which the evidence of the applicant's claim is meant to be heard.
But quite often, just as the initial order is made in the absence of the respondent, the fact-finding hearing is held in their absence as well.
A judgement is then made on whether the order should continue.
At this point it can be used to restrict a parent from spending time with his or her child and to delay the process of arranging contact.
Yes, the country that gave the world Magna Carta today allows parents (mostly fathers) to be removed from their children’s lives without ever appearing in court to defend themselves. Consider but one example.
And Sir Andrew [McFarlane] cited a case in which a father was subject to a continuing non-molestation injunction preventing him from having any contact with his children for a period of years.
"That injunction had been based upon the untested and contested factual allegations which were never tried," he said.
There once was a thing called “due process of law.”
And it’s not just organizations like Families Need Fathers that are complaining. McFarlane is the new president of the Family Court Division. Outgoing president Sir James Munby has raised the issue before.
The outgoing president of the High Court's family division, Sir James Munby, described false allegations as a "vice in the system".
He also said that the judiciary had recently realised that "a wrongly granted without notice order sets the tone of proceedings thereafter".
He tried to crack down on the use of such orders, reminding courts that it was for the applicant to prove their claims rather than for the respondent to disprove them.
As long as non-molestation orders are so easy to obtain, as long as the government offers free legal representation to get them, as long as they are, at least for six months, literally unanswerable and as long as they carry such power in child custody proceedings, they’ll continue to be misused as they are being now. Judges can and must put a stop to the abuse of parents, children and the legal system that NMO’s present.